Setting Aside a Bankruptcy Notice

Time limitations

If you have been served with a Bankruptcy Notice, you can apply to the Federal Court of Australia or the Federal Circuit Court of Australia to set aside the Notice. The application must be made within 21 days from the date of service of the bankruptcy notice. Generally, if you are challenging the underlying judgment on which the bankruptcy notice is based, you will need also to apply to set aside that judgment in the court where that judgment was obtained or be appealing the decision.

Applying to set aside the judgment or appeal a decision quite often involve complex legal issues and as the setting aside of the bankruptcy notice may hinge on your ability to do so, it is crucial you have quality and experienced legal advisers assisting you with those processes, applications and appeals.

If you have been served with a Bankruptcy Notice you should contact us urgently to accurately calculate when the 21 day period expires. The calculation will depend on the method of service.

Grounds

There are general grounds that you could rely on to set aside the Bankruptcy Notice including:

1. You have applied to set aside the judgment debt which the Bankruptcy Notice relies on;
2. You can satisfy the Court you have a counter claim, set off or cross demand exceeding the Judgment debt; and
3. On the basis of “other grounds”.

Setting Aside the Judgment

If you wish to apply to set aside the Judgment for which the Bankruptcy Notice is based on, you should apply to the Court that made the Judgment. We can assist you with any application to set aside the Judgment.

Counter Claim, Set Off or Cross Demand

If you have a counter claim, set off or cross demand for an amount equivalent to or exceeding the Judgment debt, that is common with the creditor named in the Bankruptcy Notice and such claim could not have been litigated in the same proceeding which the Judgment was obtained, you may have grounds to set aside the Bankruptcy Notice. We can assist you with any counter claim, set off or cross demand.

Common “other grounds” include:

• there was a defect or irregularity in a Bankruptcy Notice that is substantial and not procedural or would be objectively capable of misleading the debtor;
• enforcement of the Judgment or Order was suspended or there was a stay on the Judgment at the time the Bankruptcy Notice was issued and/or served;
• the amount claimed in the Bankruptcy Notice is more than the Judgment amount;
• there is an error in the name of the debtor or creditor in the Bankruptcy Notice;
• the Bankruptcy Notice has not been completed correctly; and
• the debtor does not owe the debt alleged in the Bankruptcy Notice.

The above list is not exhaustive, if you think you may have grounds for setting aside a Bankruptcy Notice you should obtain legal advice immediately before your time to apply lapses.

Please see below for more information on:

• The Benefits of Bankruptcy for a Creditor;
• Applying To Bankrupt an Individual;
• Serving A Bankruptcy Notice; and
• Setting Aside a Bankruptcy Notice.

Here to Help

Proper experience in dealing with bankruptcy is essential. Aitken Whyte Lawyers Sunshine Coast are focused on results. Our litigation and disputes team will advise you on the proper course to take if you have been served with a Bankruptcy Notice and need to set it aside.

Aitken Whyte Lawyers can assist you with all bankruptcy and debt dispute matters.

Office Location and Contact Details

Sunshine Coast

Maroochydore
Aitken Whyte Lawyers
11/8 Pikki Street,
Maroochydore Qld 4558
Ph: +617 5408 0655
Fax: +617 3211 9311
Email Us